Docket: 1734 E.B. v. L.B., 2011 SKCA 141

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 141 Date: 20111117 Between: Docket: 1734 E.B. and L.B. Appellants - and - Ministry of Social Services Respondent - and - L.B. (deceased) Respondent - and - L.S. and L.S. Respondents - and - Touchwood Child and Family Services Inc. Respondent Coram: Lane, Ottenbreit and Herauf JJ.A. Counsel:

Merilee Rasmussen, Q.C. and Zena Charowsky for the Appellants Audrey Lewans for the Respondent Ministry of Social Services Christine Hansen-Chad for the Respondents Foster Parents Appeal: From: 2009 SKQB 46 Heard: November 17, 2011 Disposition: Dismissed (orally) Written Reasons: November 21, 2011 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Ottenbreit Herauf J.A. I.

Introduction [1] The appellants, E.B. and L.B., appealed a Queen’s Bench decision that found their granddaughter to be a child in need of protectionand ordered that she be permanently committed to the case of the Minister of Social Services pursuant to s. 37(2) of The Child andFamily Services Act, S.S. 1989-90, c. C-7.2 (“CFSA”). When the matter came on for hearing, the Court requested that counsel addressthe issue of whether the appeal is moot. After oral argument, we dismissed the appeal on the basis of mootness and advised that writtenreasons would follow. These are those reasons. II.

Background [2] The relevant background is as follows. The child was born on March 3, 2003. The child was placed in the care of the Minister ofSocial Services in May of 2003 and has resided in the home of the foster parents, L.S. and L.S. since September, 2003. The foster parentswish to adopt the child. Both the appellants and the foster parents were designated as persons of sufficient interest under s. 23 of theCFSA and fully participated in the lengthy trial relating to the child protection hearing that resulted from the apprehension of the child bythe Minister.

The child’s mother died during the hearing process. As a result of the death of the child’s mother, the appellants took theposition that they were “adult person(s)” who were “able and willing to provide for the child’s needs” as set out in s. 11(

b) of the CSFA.In a nutshell, the appellants’ submission is that the child was not in need of protection since they are adult persons who are willing andable to care for her. In view of this factor, the appellants submit that it was not necessary for the trial judge to consider what order shouldbe made in relation to the child’s continued care. [3] The issue of mootness arose because the grandparents elected not to appeal the permanent order of committal. The appellantsrecognize that it would not be in the child’s best interests to remove her from the only home she has known for the last eight years.

Theonly relief sought by the appellants is “a declaration interpreting s. 11 of the CFSA”. III. Analysis [4] It is obvious that this appeal no longer involves a live issue between the grandparents and the Minister. Therefore, the issue iswhether the Court should exercise its discretionary authority and deal with the substance of the appeal in view of the mootness issue.See: Canada (Attorney General) v. Borowski, (SCC), [1989] 1 S.C.R. 342; R. v. Law Society of Saskatchewan (1983), (SK CA), 25 Sask. R. 135 (Sask. C.A.); R. v. Latham, 2009 SKCA 25, 324 Sask. R. 83; U.F.C.W. Local 1400 v.

Wal-Mart Canada Corp., 2009 SKCA 69, 331 Sask. R. 247. [5] The Court has the discretion to hear the appeal if it should feature an issue of recurring but fleeting duration or if the issue involvedis of such general importance as to merit resolution. In our view, this is not a situation where the Court should exercise its discretion infavour of hearing the appeal. While we recognize that the

interpretation of s. 11(

b) of the CSFA is of importance, it is not an issue that isof fleeting duration. We were advised that there is at least one appeal that is presently before the Court where the issue of the meaning of“adult person” in s. 11(

b) of the CSFA is front and centre. It is likely that the Court will be required to address this particular point in thenear future.

[ 6 ] For these same reasons we also declined to permit the appellants leave to amend the relief requested to include an appeal of the permanent committal order made under s. 37(2) of the CSFA. The trial judge is required to consider the best interests of the child in the determination of the appropriate order under s. 37. Since the appellants concede that it is in the child’s best interest to remain with the foster parents, it would be inappropriate to permit the amendment sought in view of this concession. IV. Conclusion [ 7 ] The appeal is dismissed as being moot.

The respondent foster parents are entitled to costs of the appeal in the usual way with no costs allowed for the argument as specified in item 10 of the tariff. The Minister did not request costs.